Coleridge and Coleridge and Anor
[2011] FMCAfam 896
•1 September 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| COLERIDGE & COLERIDGE and ANOR | [2011] FMCAfam 896 |
| FAMILY LAW – Parenting – dispute about father’s time with child aged eight – father and mother on the methadone program – child living with mother and maternal grandparents – father seeking to spend time with the child each alternate weekend and for half of the school holidays – mother and maternal grandparents proposing less frequent time and that it be supervised by the paternal grandmother – where the father has failed to comply with drug testing orders made in June 2010 or to produce any evidence to allay concerns that he continues to use illicit drugs – father conceding that an order for supervision inevitable – father seeking an order that supervision automatically cease if and when he is able to establish that he has ceased using illicit drugs – mother and maternal grandparents seeking an order for permanent supervision. |
| Family Law Act 1975, ss.60CC, 61DA, 62G |
| Hall & Hall (1979) FLC 90-713 Mazorski & Albright (2007) 37 FamLR 518 |
| Applicants: | MS G COLERIDGE & MR G COLERIDGE |
| First Respondent: | MS K COLERIDGE |
| Second Respondent: | MR CLARKE |
| File Number: | NCC 778 of 2010 |
| Judgment of: | Terry FM |
| Hearing dates: | 20 July & 5 August 2011 |
| Date of Last Submission: | 5 August 2011 |
| Delivered at: | Newcastle |
| Delivered on: | 1 September 2011 |
REPRESENTATION
| Counsel for the Applicants: | Mr Boyd |
| Solicitors for the Applicants: | (direct brief) |
| Solicitor Advocate for the first Respondent: | Ms Clark |
| Solicitors for the first Respondent: | Denise Clark Solicitor & Advocate |
| Counsel for the second Respondent: | Mr Kelly |
| Solicitors for the second Respondent: | Mark Turnbull & Co |
ORDERS
That the child [X] COLERIDGE-CLARKE born [in] 2003 live with the mother MS K COLERIDGE and the maternal grandparents MS G COLERIDGE & MR G COLERIDGE.
That the mother and the maternal grandparents have equal shared parental responsibility for the child.
That the child spend time with the father:
a)For one weekend during each school term (as close to the mid-point of the term as possible) from Saturday morning to Sunday afternoon, such time to be spent at [W], Sydney and to be supervised by the paternal grandmother or another adult acceptable to the maternal grandparents.
b)For two separate periods of four hours during each school term, one period to occur prior to the mid-point of such term and one period to occur following the mid-point of such term, with such time to occur in the [R] area and to be supervised by the paternal grandmother or maternal grandparents with the father to give the maternal grandparents seven days notice of his intention to exercise this time.
c)For two days (including one overnight) in each of the three shorter school holiday periods each year, such time to be spent at [W] and to be supervised by the paternal grandmother or another adult acceptable to the maternal grandparents with the time to occur on the days agreed between the father and the maternal grandparents and failing agreement on the days nominated by the maternal grandparents.
d)During the Christmas school holidays each year for three separate non-consecutive periods of two days (including one overnight) in [W] at times to be agreed between the father and the maternal grandparents and failing agreement to be as nominated by the maternal grandparents to be supervised by the paternal grandmother or another adult acceptable to the maternal grandparents.
e)At such additional or alternate times as may be agreed between the father and the maternal grandparents.
That the father collect the child from the maternal grandparents home at [R] at the commencement of his time pursuant to order 3 and return the child to the maternal grandparents home at [R] at the conclusion of that time.
That the supervisor of the father’s time or a nominee agreed to by the maternal grandparents shall accompany the father when he collects the child from and returns the child to the home of the maternal grandparents.
That the father have telephone communication with the child at any reasonable time.
That the father may obtain from the child’s school copies of school reports, newsletters, order forms for school photographs and other information normally provided to parents and may attend events at the child’s school normally attended by parents.
That each party provide authorisation to any medical practitioners of the child to allow all parties to have direct access to the child’s health and medical records.
That each party advise the other parties as soon as reasonably practicable in the event that the child while in their care is involved in an accident or medical emergency requiring treatment at hospital or is diagnosed with a serious illness.
That each party advise the other parties of a change of address or contact telephone number within twenty four (24) hours of a change occurring.
That no party denigrate nor allow any other person to denigrate the other parties to or in the presence or hearing of the child.
That no party use illicit drugs nor consume alcohol in excess of an amount which would allow them to legally drive a motor vehicle in NSW at any time whilst the child is in their care or 12 hours prior to that time.
That if the father provides to the other parties supervised chain of custody hair follicle test results which establish that he has not used any illicit drugs for a continuous period of twelve months following the date of these orders the parties shall if the father instigates it attend family dispute resolution to discuss and attempt to reach agreement about any changes proposed by the father to the arrangements for him to spend time with the child.
The father shall not commence court proceedings seeking a variation of these orders unless he has first attempted to discuss the proposed variation with the maternal grandparents and the mother at family dispute resolution.
IT IS NOTED that publication of this judgment under the pseudonym Coleridge & Coleridge and Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT NEWCASTLE |
NCC 778 of 2010
| MS G COLERIDGE & MR G COLERIDGE |
Applicants
And
| MS K COLERIDGE |
First Respondent
| MR CLARKE |
Second Respondent
REASONS FOR JUDGMENT
Introduction
[X] Coleridge-Clarke, aged 8, is the only child of Ms K Coleridge and Mr Clarke.
The parents have a long history of illicit drug use, including heroin use, and both are on the methadone program.
[X] lives with the mother at the home of the maternal grandparents Ms G Coleridge and Mr G Coleridge and has done for most of his life. All parties agree that this should continue.
For the last fifteen months the father has been spending time with [X] for four hours once each fortnight at the maternal grandparents home in [R] in [H]. He would like to commence spending time with [X] in his own home in [W] in Greater Western Sydney. All parties agree in principle that this should occur.
The parties are in dispute about the following:
i)How much time [X] should spend with the father in [W].
ii)Whether time which occurs away from the maternal grandparents’ home should be supervised by the paternal grandmother or some other suitable person and whether supervision should be permanent or should cease if certain conditions were met.
iii)Whether the father should be prohibited from personally driving [X] between [R] and [W].
iv)Whether the mother and the maternal grandparents alone should have equal shared parental responsibility for [X] or whether the father should be included as one of the people having parental responsibility.
The parties proposals and their arguments in favour of those proposals were as follows:
i)How much time [X] should spend with the father.
The mother and maternal grandmother proposed that [X] spend time at [W] on one weekend in the middle of each school term, for two days during each of the shorter school holiday periods and for two days with further time as agreed during the Christmas school holidays. They proposed that the father spend time with [X] for four hours on two additional occasions during each school term at [R] supervised by them.
The maternal grandparents have a poor opinion of the father. They are unconvinced that he is a good role model for [X] and unconvinced that he has ceased using illicit drugs. They are concerned about the violence he has committed against the mother in the past and concerned that [X] might be exposed to family violence if he spends time with the father in [W].
The mother shares the maternal grandparents concerns save that she does not consider that there is any present risk of [X] being exposed to family violence in the father’s care.
The father proposed that [X] spend time with him each alternate weekend during school terms from Friday afternoon to Sunday afternoon and for half of each school holiday period.
The father has a good relationship with [X] and can see no reason why his time with him should be as limited as the other parties proposed.
He denied that he was currently using illicit drugs and said that there was no risk of [X] being exposed to illicit drug use or family violence while in his care.
ii)Whether time which occurs away from the maternal grandparents’ home should be supervised by the paternal grandmother or some other suitable person and whether supervision should be permanent or should cease if certain conditions were met.
The mother and maternal grandparents proposed that the father’s time be permanently supervised, because of their concern about drug use and in the case of the maternal grandparents family violence.
During final submissions the father conceded that his failure to comply with drug testing orders made in June 2010 and therefore to allay suspicions that he continued to use illicit drugs made a supervision order for some period inevitable. He proposed that the orders provide for supervision to cease once he proved that he was no longer using illicit drugs.
iii)Whether the father should be prohibited from personally driving [X] between [R] and [W].
The mother and the maternal grandparents sought this restriction. They said that when the father arrived at their home from [W] after a two hour drive he was “noddy” and the father himself gave evidence that he found the drive exhausting. The mother and maternal grandparents were very concerned about the prospect of the father collecting [X] if he was either “noddy” or exhausted and then driving back to [W].
The father strongly opposed any restriction being placed on him driving [X] anywhere. He said that he had never had an accident with [X] in the car and furthermore he held a NSW drivers licence and no one had the right to tell him that he could not use it.
iv)Whether the mother and the maternal grandparents alone should have equal shared parental responsibility for [X] or whether the father should be included as one of the people having parental responsibility.
The mother and maternal grandparents are opposed to the father sharing parental responsibility for [X]. They do not consider that there is any prospect of them being able to discuss major long terms issues with him and reach agreement.
The father said that he was and would continue to be a meaningful part of his son’s life and that there was no reason why he should not share parental responsibility for his son with the mother and the maternal grandparents.
The evidence
The maternal grandmother relied on her affidavits filed on 24 March 2010 and 1 July 2011.
The maternal grandfather relied on his affidavit filed on 24 March 2010.
The mother relied on her affidavits filed on 24 June 2010 and 1 July 2011.
The father relied on his affidavits filed on 30 November 2010 and 20 July 2011, the affidavit of his mother Ms M filed on 30 November 2010 and the affidavit of his solicitor David Cleverly filed on 30 December 2010 to which was annexed a report from a pathologist.
Ms C, a Family Consultant, interviewed the parties on 18 February 2011 and prepared a Family Report.
The maternal grandparents, mother, father and Ms C were cross-examined.
An assessment of the witnesses
The maternal grandmother spoke from the heart. She was frank and open about the fact that she and her husband distrusted the father and had a very poor opinion of him and she went as far as to say that her preference would be for the father to disappear out of their lives.
She nevertheless freely acknowledged that [X] enjoyed spending time with the father and she gave her evidence without rancour.
The maternal grandfather gave evidence in a similar vein.
Ms C said that she found the maternal grandparents “calm, cooperative and child focused” and they presented in the same way when giving evidence before me.
The mother was cross examined fairly briefly and no inconsistencies emerged between her oral evidence and the evidence in her affidavits. She maintains a generally friendly relationship with the father and she exhibited some distress when forced to give answers in cross-examination which were critical of him.
The only issue of concern about the mother’s evidence was the inconsistency between her evidence and her expressed view that the father was not likely to perpetrate further family violence.
The father was a poor witness. There were many contradictions between his oral evidence and evidence in his affidavits and there were contradictions between information he gave to Ms C and the evidence in his affidavits.
I share Ms C’s view that the father showed a strong tendency to minimise his responsibility for various incidents which had occurred. His excuses were unconvincing.
In 2003 the father was convicted of supplying a commercial quantity of heroin and sentenced to a term of imprisonment. In conversation with Ms C and when answering questions during cross-examination he sought to minimise the seriousness of this by insisting that he was an unlucky victim of a telephone tap who had done nothing more wicked than put A in touch with B.
In 2006 the father was charged with maliciously wounding the mother. The police alleged that the mother was stabbed with a knife and the father pleaded guilty to the charge and was convicted.
Ms G Coleridge, who was present during the incident, referred to it in one of her affidavits and in response the father said as follows:
With regard to paragraph 16 of the affidavit of MS G COLERIDGE, I did not stab [Ms K Coleridge] with a knife and the injuries she received were entirely accidental. What happened was that [Ms K Coleridge] was abusing me and had her keys in her hand. I lost my temper and went to grab her keys from her hand. In the course of this action, the keys cut into her hand, which started to bleed. I was not on parole at the time. I was upset and wasn’t thinking clearly. I did not intend to hurt [Ms K Coleridge].[1]
[1] Father’s affidavit filed 30 November 2010 paragraph 87
The father said something similar to Ms C. He was at a loss to explain to Ms C why he had pleaded guilty to malicious wounding if the mother had been injured accidently.
When cross-examined by Counsel for the maternal grandparents the father was still reluctant to admit that he had deliberately injured the mother but was led to say “I had a knife in my hand she had a key in her hand.”
Once he had given that answer the father tried to resile from it and to emphasise again that the mother had been holding keys in her hand which may have been responsible for her injury.
Not only did the father minimise his responsibility for serious incidents which had occurred in the past he showed no capacity to accept responsibility for his actions during the course of the current proceedings.
The father blamed his solicitor for the debacle surrounding the matter of [X] obtaining a passport so that he could travel to Fiji with his maternal aunt and uncle for a holiday in February 2011 and he blamed his solicitor for his failure to comply with the drug testing orders made in 2010.
Something which reflected badly on the father’s credit was that during 2010 the father said in answer to a query from the bench in open court (not on oath) “I have not used marijuana for the last eight years.”
The results of the first drug test to which the father submitted after the drug testing orders were made proved to be positive for cannabis.
In an affidavit filed on 30 November 2010 the father told a different story and said:
From about 2002 to date, I estimate that I have used marijuana less than a half a dozen times.
I did use marijuana once earlier this year at a party. This was picked up in a drug test.
That evening I smoked some marijuana with a friend. It was a mistake.[2]
[2] Father’s affidavit filed 30 November 2010 paragraphs 8,9 10
The father sought to deflect criticism for his statement to the bench by saying the following:
At the time I had been listening to a number of allegations being made against me by the solicitor for [my] ex partner. The matters raised upset me as I considered that they were incorrect. Instead of giving my lawyer the chance to respond, I spoke out.
I made a mistake in speaking out.
I was not giving sworn evidence at the time. [3]
[3] Father’s affidavit filed 30 November 2010 paragraphs 13,14, 15
The father’s evidence about a possession of cannabis charge in 2002 also showed him in a poor light.
Police found the marijuana in the mother’s handbag but the father told them it was his and he was charged with possessing a prohibited drug.
During cross-examination the father said that the marijuana had in fact been the mother’s and that he had told the police it was his to get the mother out of trouble, believing that he would be going to gaol on the charge of supply heroin anyway.
I struggle to accept this, but in any event the outcome for the father is either that he showed no hesitation in lying to the police in 2002 or no hesitation in being dishonest with this court in 2011. Neither reflects well on his credit.
The father was not a witness of credit.
A further matter about the father which gives rise to a sense of unease is that he uses several names. In these proceedings he is called “Mr Clarke” (date of birth [omitted] 1970) but on his passport he is called “[name omitted]” and in many police reports he is called “[name omitted]” (date of birth variously [omitted] 1970 and [omitted] 1967).[4]
[4] Exhibit H
The paternal grandmother was only briefly cross examined and her evidence in the witness box was consistent with the evidence in her affidavit.
A concerning aspect of her evidence was that she shares the father’s view that he was unfortunate to have been convicted for supply heroin in 2003. The paternal grandmother told Ms C that she was “very disappointed” when the father was charged with supply heroin and said that “what he was charged for wasn’t what he was doing” and that “he was having a conversation on the phone that was taped”.[5]
[5] Family Report paragraph 79
I will deal with Ms C’s evidence when I come to consider the Family Report later in the judgment.
Background
The mother and father were both using illicit drugs, including heroin, when they met in about 2001. They formed a relationship and their son [X] was born [in] 2003.
The mother and father did not live together either before or after [X]’ birth, rather the mother continued to reside with the maternal grandparents in their home on the Central Coast.
In September 2003 the father was sentenced to 33 months imprisonment with 17 months to serve following a conviction for possession/supply of a commercial quantity of heroin. The mother visited him regularly while he was in gaol and perhaps (as it emerged during the hearing) when he was on work release.
Upon the father’s release on parole in early 2005 he moved into the maternal grandparents’ home but I accept the maternal grandparents evidence that the situation became untenable and they asked him to move out.
In August 2005 the maternal grandparents moved to [R] in [H]. The mother and [X] remained on the Central Coast in rented accommodation pending the maternal grandparents completing renovations at [R].
The mother and father tried living together in November/December 2005 but this did not work out and the mother and [X] moved to [R] in either December 2005 or January 2006 and have lived there ever since.[6]
[6] The father agreed that the mother and [X] moved to [R] at about this time but claimed that he and the mother lived together for much longer than 2 months in 2005. I cannot resolve this issue, because although the father was not a witness of credit the mother did not really address the issue and this is a matter about which the maternal grandparents’ recollection could be wrong. However nothing turns on it.
In early 2006 the father suffered [medical condition omitted] and commenced dialysis.
In September 2006 an altercation occurred between the mother and the father when the mother went to collect belongings from the father’s home. During the altercation the father stabbed the mother in the hand after menacing her with a knife. I do not accept the father’s denial that he did this or his claim that the mother was injured accidentally.
The maternal grandmother was present during the incident and found it very frightening. [X] was also present sitting in the car. The maternal grandmother tried to draw the father’s attention to the fact that [X] was nearby in an effort to get him to control his behaviour, to no avail.
The father was charged with malicious wounding and contravening an AVO and he pleaded guilty to the charges. The mother asked the court to be lenient with him because of his [medical condition omitted] and he was placed on a two year good behaviour bond.
Between 2006 and 2008 the mother facilitated [X] spending time with the father, but always in her presence. The mother said that the time was infrequent and I prefer her evidence to that of the father who said that the time occurred frequently.
From 2008 the father began telephoning [X] fairly regularly. The mother continued to meet the father from time to time and [X] continued to see the father from time to time with the mother present. None of the parties felt it necessary to apply for any court orders about [X].
All this changed in March 2010.
On 16 March 2010 the mother drove down to the Central Coast (without [X]) to see the father. When she arrived she found that he was no longer living at his previous address and driving back to [R] the mother had an accident and was seriously injured. At first she was fighting for her life.
On 24 March 2010 the maternal grandparents made application to this court for orders that [X] live with them.
The maternal grandparents said that they did this because the father, on hearing of the mother’s accident, told them that he was going to come up and take [X] and get full custody of him. The father said that he only told the grandparents that he was intending to take [X] for the weekend. The maternal grandparents were the more reliable witnesses and I accept their evidence about what the father said.
On 11 April 2010 interim orders were made which provided for [X] to live with the maternal grandparents and to spend time with the father at the maternal grandparents’ home each alternate Sunday from 11.00 am to 3.00 pm.
The mother was subsequently released from hospital and returned to live with the maternal grandparents.
On 10 June 2010 further interim orders were made by consent. They provided for a continuation of the existing spend time with regime but also provided for the father to commence spending time with [X] every third weekend in his own home supervised by the paternal grandmother once he had produced eight clear drug screens.
The father never produced the eight clear drug screens and his time continued to occur at the maternal grandparents’ home until the commencement of the hearing, subject to some agreed variations.
The maternal grandparents agreed on occasions to the mother and [X] going with the father to venues near their home such as shopping centres. Also on about five occasions between December 2010 and May 2011 the mother with the maternal grandparents agreement took [X] to Sydney and they stayed overnight at the father’s home.
The parents’ drug use
The mother began using cannabis and then amphetamines (orally and intravenously) after leaving school. She later began using heroin.[7]
[7] Family Report paragraphs 53, 54
In 2002/3 when she was pregnant with [X] the mother was placed on the methadone program but on her own admission she continued to also use heroin until her motor vehicle accident in March 2010.
The mother said that the accident had been a major wake up call for her and that she had not used heroin or any illicit drugs since then. The mother remains on the methadone program.
The maternal grandmother has a realistic view of her daughter’s circumstances and tries to trust her but is watchful and knows full well that a relapse is possible.
The father commenced using cannabis and then amphetamines in his teens and by his twenties had commenced using heroin.
He also went on the methadone program around the time of [X]’s birth.
The father gave contradictory information about whether he also continued to use heroin after that time. Ms C reported that:
The father stated that he continued to use heroin until [X] was born and he went on the methadone program. He initially denied any use since the birth of [X] and said he had only had “a couple of drags on a joint” and “the cannabis, that’s it”. It was noted to the father that this appeared to contradict information that he had previously told the writer (Child Dispute Conference October 2010) that he “may have used” since the birth of [X]. The father then shifted to state that he “may have used (heroin) once or twice in that seven or eight years, but certainly not in the last three years.”[8]
[8] Family Report paragraph 31
The mother maintained the father had continued to use heroin regularly after [X]’s birth and that until March 2010 she and the father used together.
The mother suspects that the father is still using illicit drugs. This is partly because of her observations of him when he comes to the maternal grandparents’ home to visit [X]. She said that on numerous occasions he was “noddy” when he arrived and that in her experience this was what happened when the father used drugs.
She also said that she had observed drug paraphernalia in his car.[9]
[9] Mother’s affidavit filed 1 July 2011 paragraph 14
A further matter of concern to the mother and maternal grandparents was that the father was frequently late and often very late arriving at their home to spend time with [X], creating a suspicion in their minds that he might be stopping off on the Central Coast on his way to [R] to purchase drugs.
This last is pure speculation but I accept that the mother and maternal grandparents were being truthful when they said that they had observed the father to be “noddy” on numerous occasions and that the mother has indeed observed the needles and other items in his car.
This is not the end of the matter because the father said that there were alternative explanations for his appearance and for the alleged drug paraphernalia.
The father said that he found the drive from [W] to [R] “exhausting” and that if he appeared “noddy” it was simply because he was tired. As for the drug paraphernalia the father said that the needles the mother had seen in his car were for his dialysis.
The father was not a witness of credit however and the obvious way for him to have convinced the court that the mother was mistaken and he was no longer using illicit drugs would have been to comply with the drug testing order made by consent in 2010 and return clean drug screens or alternatively do hair follicle testing suggested by Ms C at the 11F Conference in October 2010. He did neither.
The orders about the drug testing were as follows:
(3)The father undertake supervised and chain of custody urinalysis service [sic] twice each week within 24 hours of the mother’s solicitor providing a letter to the father’s solicitor requesting such urinalysis, however one drug test per fortnight shall be a blood test.[10]
[10] Order 3 of Terms of Settlement made on 10 June 2010
The father did do some tests. The first test (a urine test not a blood test as requested) was positive for cannabis. The father said that this was because he had had a couple of drags on a joint at a party. The second requested test was not done. The third test showed low creatinine levels which made the result unreliable. The fourth, sixth and seventh tests were clear and the fifth test was clear although a urine not a blood test was done.
There were subsequently three clear results and then complete non-compliance with the orders.
The father alleged that all the samples which were tested had been given under supervision. He was not a witness of credit however and there was nothing on the face of the results to confirm this, and even if the samples were given under supervision there was no evidence that the samples so given were the same samples which were tested.
The clean drug test results which were produced therefore do not assist the father.
The mother said and I accept that that when she and the father were together and were both on the methadone program they knew how to get around the requirements for drug testing.
The mother’s solicitor advocate put to the father a drug testing result from 1994 in which the testing laboratory noted that the sample they had been asked to test and which had allegedly come from the father was identical to a sample provided by his brother. The father could offer no explanation for this other than to suggest that the testing laboratory had made a mistake.
Another problem with the test results is that few if any were done within the required time frame.
The father blamed his solicitor for the fact that he had not properly complied with the drug testing order, saying that his solicitor had told him that what he was doing was sufficient. Another excuse which emerged was that he could not afford to pay for the supervised chain of custody urinalysis tests which he had consented to obtain.
The reason for the father’s noncompliance with the drug testing orders does not greatly matter. The upshot is that in the face of persistent allegations that he was continuing to use drugs the father failed to comply with drug testing orders. He also failed to arrange for hair follicle testing, something Ms C suggested in October 2010. He presented at the hearing on 20 July 2011 without a single reliable piece of evidence about his drug use, which served to create considerable suspicion that the mother and maternal grandparents were right and that he was continuing to use illicit drugs.
An issue which might have become relevant if the father had complied with drug testing orders and produced clean screens, is whether clean urinalysis screens can be depended on in circumstances where the father’s is undergoing dialysis. The pathologists report annexed to the affidavit of the father’s solicitor David Cleverly was designed to deal with this issue but the information in it was not tested at the hearing because the father never got to the point of properly complying with the drug testing orders.
Ms C’s opinion and it has considerable merit is that the only testing which would be reliable in the circumstances of this case is hair follicle testing.
[X]’ best interests
Any orders I make about [X] must be orders which treat his best interests as the paramount consideration. Ss.60CC(2) and (3) of the Family Law Act 1975 set out the matters to which I must have regard in order to determine [X]’s best interests.
The primary considerations in s.60CC(2) are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
It would undoubtedly be of benefit to [X] to have a meaningful relationship with his father. The father may not be perfect but [X] enjoys spending time with him. They share interests such as playing the X Box and they share an [omitted] heritage.
A meaningful relationship can only be sustained if [X] spends time with the father, but it does not necessarily have to be the more extensive time sought by the father. [X] could still have a relationship with the father which was “important, significant and valuable to [him]”[11] if he spent the less frequent periods of time with the father which the mother and the maternal grandparents proposed and had regular telephone communication with him.
[11] Mazorski & Albright
There was no evidence that [X] had ever been abused or exposed to abuse by the father, and no evidence to suggest this was likely to occur in the future.
[X] could be exposed to neglect if he was in the sole care of the father and the father was using illicit drugs. An order that the father’s time with [X] be supervised would guard against this possibility of neglect.
[X] has been exposed to the father committing acts of family violence against the mother in the past. He was present during the incident when the father stabbed the mother and there is some evidence that he may have suffered psychological harm as a result.
Earlier this year [X]’ teacher told the maternal grandparents that [X] had informed her out of the blue that his father had stabbed his mother. The maternal grandparents arranged for [X] to see a counsellor. He has responded well to the sessions with the counsellor and appears to be turning a corner at school.
Ms C was concerned about the potential for [X] to be exposed to family violence if he spent time unsupervised with the father in the future but whether there is in fact a risk of [X] being exposed to family violence in the father’s separate care is open to question.
The mother certainly thought there was little risk. It was her case that the violence which had occurred in the past occurred at times when she and the father were using drugs together. It was her case that there was little likelihood of any further violence occurring in the future because these conditions (of them taking drugs together) would not be replicated.
This is inconsistent with her own evidence. It is her belief that the father continues to use illicit drugs, and she said in an affidavit that “when using drugs [Mr Clarke] is unpredictable and violent.”[12]
[12] Mother’s affidavit filed 24 June 2010 paragraph 17
Ms C queried whether the mother’s judgment could be relied upon given the injuries she suffered in the motor vehicle accident.
I consider that the mother may well be minimising the risk the father poses to her.
The father rushed at her and stabbed her in the hand in 2006 and it was her evidence that on Father’s Day 2005 he attacked her and punched her causing bruising.
In 2008 the mother called the police to the [R] property alleging that the father had punched her in the face although when the police attended the mother told them it was a mistake and the father had only pulled her pony tail.
I consider that there is a greater risk than the mother admits of the being violent to her but it does not necessarily follow that there is a risk of [X] being exposed to the father committing acts of violence when the mother is not present.
There is some strength in the submission by the father’s counsel that there is a low probability of this occurring. There was no evidence that the father was a person of violent propensity generally, and the only violent incident in his criminal record concerning a third party occurred in 2003.
There was no suggestion that [X] was likely to be exposed to abuse neglect or family violence in the care of the mother and maternal grandparents.
I must also have regard to the additional considerations in s.60CC(3).
The first of these is any views expressed by the child and any factors (such as the child’s level of understanding) that the court thinks are relevant to the weight to be given to those views.
[X] told Ms C that he enjoyed spending time with his father and would like to spend time at the father’s house without the mother being present.[13]
[13] Family Report paragraphs 87 and 90
All parties accepted that these were genuine views held by [X].
I must consider the nature of the relationship of the child with each of the child’s parents and any other relevant persons including any grandparents of the child.
[X] has a good relationship with the maternal grandparents. This was not in dispute and Ms C said as follows:
The maternal grandparents were observed with [X]. Both of the maternal grandparents engaged with [X] in active play and they appeared to be very relaxed and comfortable in each other’s company. No concerns were noted in the session.[14]
[14] Family Report paragraph 93
Ms C said as follows about the relationship between the mother and [X]:
At the end of the session the maternal grandparents left and the mother was introduced to the session. [X] continued playing while he waited for the mother and happily started engaging with the mother when she entered the room. The mother remained focused in playing with [X] and they both appeared to be very relaxed and comfortable in each other’s company. No concerns were noted in the session.[15]
[15] Family Report paragraph 94
The mother and maternal grandparents conceded that [X] had a good relationship with the father and Ms C said as follows:
[X] had arrived with the maternal family and was excited at the prospect of spending time with the father. He separated without distress. When the father came into the room [X] ran to him and gave him a hug and a kiss. For the duration of the session [X] and the father happily engaged in a range of activities. They both appeared to be very relaxed and comfortable in each other’s company.[16]
[16] Family Report paragraph 91
All parties accepted that [X] had a good relationship with the paternal grandmother and the mother said as follows:
I have witnessed the paternal grandmother to be warm and loving with [X] on each of the occasions we stayed in her home.[17]
[17] Mother’s affidavit filed 1 July 2011
In the Family Report Ms C said as follows:
Shortly after the commencement of the session [with his father] [X] asked about “nonna.” The paternal grandmother was introduced to the session and [X] warmly greeted her.[18]
[18] Family Report paragraph 92
It was accepted that [X] had a good relationship with his young cousins on the paternal side of the family and with the paternal uncle and aunt who live nearby.
The nature of [X]’s relationship with the paternal family suggests that he would cope with and enjoy spending the greater amounts of time with his father which the father proposed.
I must consider the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent.
The mother and father each have a willingness and ability to facilitate and encourage [X] having a good relationship with the other.
The willingness and ability of any other person to facilitate and encourage a relationship between the child and a parent would normally be considered under the heading “any other relevant matters.” However the maternal grandparents stand partially in the place of parents to [X] and it is convenient to consider here their attitude to the father having a relationship with [X].
The maternal grandmother frankly admitted that she would prefer it if the father disappeared from [X]’s life. The maternal grandfather holds a similar view.
Their attitude is understandable given the history of the matter but what is noteworthy is that despite their own feelings they recognise that [X] wants a relationship with his father and they have facilitated it over the last fifteen months. They have allowed the father to spend time with [X] in their home, even in the face of his frequent lateness and even in the face of their fear that his appearance on occasions indicates that he may have taken drugs.
There is nothing about the maternal grandparents’ attitude or actions which would suggest that there is a need to give the father more rather than less time with [X] to guard against his relationship with [X] being undermined by the other parties.
I must consider the likely effect of a change in the child’s circumstances.
It was agreed that [X] should commence spending time with the father in [W] without the mother being present. This will be a change for [X] but it is something he wants and provided that he is not exposed to family violence or the father taking illicit drugs the change should be a beneficial one for him.
The father proposed that the time be much more extensive than the mother and maternal grandparents proposed.
[X] is eight and he could cope with the more extensive time. More time would allow [X] and the father to do more activities together and would result in [X] being more extensively exposed to his [omitted] heritage and to the [omitted] language. More time is therefore to be preferred provided that [X] can be kept safe and free from exposure to illicit drug taking.
I must consider the practical difficulty and expense of the child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
The parties live at least two hours driving distance apart and this does create a practical difficulty and expense in [X] spending time with the father. The distance makes anything more frequent than each alternate weekend time and half school holidays impracticable.
I must consider the capacity of each parent and any other person (including a grandparent of the child) to provide for the needs of the child including his emotional and intellectual needs.
The maternal grandparents live on a five acre property at [R] in [H]. The maternal grandfather is a [occupation omitted] and the maternal grandmother is a [occupation omitted] who works during school hours.
The mother is on a disability pension. She is still recovering from her injuries from the motor vehicle accident and while she does as much as she can for [X] there was no suggestion that she was likely to leave the grandparents home and live independently with [X].
[X] is in Year 2 at [N School], which he has always attended. He experienced some difficulties at school in late 2010 and early 2011 but he has shown improvement since he started seeing the counsellor.
He is receiving excellent care from his mother and maternal grandparents combined. Ms C described him as a “warm, happy, easily engaged child” and [X] told Ms C he enjoyed living with the maternal grandparents and the mother.
The maternal grandparents are attuned to his emotional needs. They sought counselling for him in March 2010 after his mother was injured in the motor vehicle accident and immediately the teacher told them in 2011 about [X]’s revelations concerning his father stabbing his mother they arranged for him to undergo further counselling.
The maternal grandparents’ response to the father’s persistent lateness for visits also shows a capacity to focus on [X]’s emotional needs. The maternal grandparents would have been quite within their rights to insist on visits ending at 3.00 pm no matter when they commenced, but they have always allowed the father to spend at least four hours with [X] no matter what time he has arrived and the father has often stayed longer than four hours even to the point of occasionally staying for dinner.
The father was critical of the maternal grandparents for urging [X] to confront him in January 2011 about why he was refusing to consent to the issue of a passport for [X].
This was not a child focussed action by the maternal grandparents but it must be considered in the context of what had previously occurred in relation to the passport.
[X]’s maternal aunt and uncle made arrangements to go to Fiji with their children for a ten day holiday in February 2011 and they invited [X] to accompany them. The maternal grandparents asked the father to give his consent so that [X] could obtain a passport and go on the holiday with his cousins. [X] became excited about the prospect of going on the holiday.
The father signed a form giving his consent. However when the Department of Immigration rang him to confirm that the signature on the form was his he withdrew his consent.
The maternal grandparents received a telephone call to this effect from the Department of Immigration while they were travelling in the car with [X]. [X] heard the telephone conversation and became extremely upset.
Shortly afterwards the maternal grandparents confronted the father while [X] was present and asked him to explain to [X] why he had withdrawn his consent. I accept the maternal grandmother’s evidence that the father said to [X] “you’re not going because Nan and Pa won’t let you stay with me at night”.
The father’s solicitor subsequently sent a letter to the maternal grandparents solicitors setting out numerous other reasons for the father’s refusal.
The passport issue was discussed during the Family Report interviews and Ms C asked the father to reconsider his stance. He then agreed to the passport issuing and [X] was able to go on the holiday.
The maternal grandparents said that they could see in hindsight that confronting the father about the issue while [X] was present was not child focussed. However everybody makes mistakes and 2010 had been a very difficult year for the maternal grandparents. It is understandable that they were frustrated and upset by the father’s back flip over the passport and [X]’s consequent distress. I am satisfied that in the main the maternal grandparents have the capacity to provide for [X]’s needs, including his emotional needs.
The father lives in [W] in Greater Western Sydney with his mother, her partner Mr S and his sister’s two children. He suffers from [medical condition omitted] and must undergo dialysis for ten hours each day.
The father may be eligible for a transplant in the future but there is some doubt about this. He has hepatitis C and needs to take part in an Interferon program before he can be considered for a transplant. He has not taken part in this program to date despite having been given many opportunities to do so.
In a letter dated 17 June 2009 the father’s treating specialist Dr V said as follows:
Unfortunately [Mr Clarke] has been a very infrequent attender to our clinic and despite efforts to ring him in June last year, in July and then again in September, we have not actually been able to get him back to the clinic to commence his therapy because he tells us he is too unwell. In fact at one point I had issued the script to Pharmacy, but as he didn’t turn up we put a stop on that prescription.[19]
[19] Exhibit G
In a letter dated 29 April 2010 Dr R said as follows:
I have had him on the transplant waiting list but I always have ongoing concerns about his compliance in terms of turning up for doctor’s appointments as it has taken 480,000 attempts for him to attend a liver clinic for Interferon treatment for his hepatitis C infection.[20]
[20] Exhibit G
During the hearing the father blamed his doctor(s) for the fact that he had not commenced the Interferon program and said that he intended to commence it shortly.
The father said that his dialysis did not impede his ability to care for [X] as he could easily unhook himself from the machine if some emergency arose.
The father maintained that he was a good role model for [X] and pointed to the fact that he had recently completed a [course omitted] and was working on completing a “certificate for [omitted]”. He said that he was also involving himself in community activities.
The father said that he regretted his past criminal activities and drug taking and would ensure that his son did not follow the same path.
In his affidavit he said as follows:
If given the opportunity to spend more time with [X], I intend to remain residing with my mother whilst I have these medical conditions and I intend not to touch or consume illegal drugs of any kind. I will be very careful to ensure that he understands the drawbacks of drugs, smoking, alcohol and crime.
I intend to teach [X] that it is not cool to follow the crowd just to be in, and that power and self-respect comes from within as much as others peoples approval.[21]
[21] Father’s affidavit filed 20 July 2011 paragraphs 82 and 83
The father’s propensity to minimise his responsibility for criminal offences such as stabbing the mother and being involved in the commercial supply of heroin and his tendency to blame others at every turn rather than accept responsibility for his own actions and decisions do not however mark him out as an especially good role model for [X].
The father is untried as a carer for [X] on his own, and his capacity to provide care for [X] would be seriously compromised if he was under the influence of illicit drugs or was craving drugs while [X] was with him. For reasons given earlier I cannot be satisfied that the father has ceased using illicit drugs.
The father has a very limited capacity to provide for [X]’s emotional needs.
He was unapologetic about his constant lateness for visits at the maternal grandparents’ home when asked about it during cross-examination. He seemed genuinely puzzled about why he was being criticised for failing to abide by the times in the order and showed no recognition of the inconvenience this caused to the maternal grandparents and the distress it caused [X] who sat waiting for him sometimes for hours.
He was unapologetic for his actions surrounding the passport debacle and blamed everyone but himself for what had occurred.
He was dismissive of any suggestion that [X] remembered the violent incident during which the mother was stabbed and questioned the veracity of the maternal grandmother’s evidence about what she had been told, saying “I’ve spoken to his so called teacher and she hasn’t mentioned nothing to me about this.”
I accept that the father loves [X] but I am unconvinced that he has any capacity to put [X]’s needs ahead of his own. This and his ready ability to make excuses for his own shortcomings and his propensity to quickly shift the blame to others for his failures creates a real concern in my mind about the father’s capacity to shield [X] from exposure to drug use if the father is indeed still using illicit drugs.
The paternal grandmother is in good health and has no criminal convictions and her assertion that her partner Mr S was of good character was not challenged.
The paternal grandmother adores [X] and the maternal grandmother conceded that the paternal grandmother was well able to look after him.
The paternal grandmother said that she was willing to supervise and monitor [X] if he spent time with the father in [W] and would look after him if the father could not. She said that she would not permit any illicit drug use or excessive alcohol consumption in her home.
I also have some concerns about the paternal grandmother’s capacity to adequately supervise the father’s time, not because she does not love [X] but because she has shown herself to be altogether too trusting of the father.
She did not recognise any signs of him having a drug addiction prior to him being convicted of the supply heroin offence. She accepts the father’s version of events about the supply heroin offence, a version which paints him as an unlucky victim of a telephone intercept.
In answer to a question in cross examination the paternal grandmother said that she had no concerns that the father might currently be using drugs. This contrasts with the maternal grandmother, who tries to trust the mother but is watchful for the signs of a relapse.
The paternal grandmother’s evidence raises a concern in my mind that she might miss signs that the father had returned to illicit drug use, either because she did not notice anything amiss or because if she did she too readily accepted facile explanations from the father.
I have concerns about the father’s parenting capacity and his suitability as a role model for [X] and I have some reservations about the paternal grandmother’s capacity to shield [X] from exposure to illicit drug use by the father. This favours an order that the father’s time be less extensive as proposed by the mother and maternal grandparents.
I must consider the maturity, sex, lifestyle and background (including the lifestyle, culture and traditions) of the child and of either of the child’s parents and any other characteristics of the child that the court thinks are relevant.
The father is [nationality omitted] and [omitted] is spoken in his home. In the father’s home [X] will have an opportunity to connect with his extended [nationality omitted] family and his [omitted] heritage.
He will have this opportunity regardless of the amount of time he spends there but more time will give him more opportunity.
The maternal grandfather has [omitted] heritage and through him [X] also has [omitted] heritage. It was not suggested however that this was something which had a bearing on whether [X] spent more or less time with the father.
I must consider the attitude of each parent to the child and to the responsibilities of parenthood.
The father has made an effort to keep in regular contact with [X] since 2008 and has spent time with him regularly since orders were made in April 2010. This demonstrates a good attitude to the child.
The father is paying a very low level of child support.
This places a significant burden on the other parties and the maternal grandmother said as follows:
The father pays $6 each week by way of child support. [Ms K Coleridge], [Mr G Coleridge] and I pay for all of [X]’s needs, including his schooling, clothing, sport, medications and counselling. We have paid for extensions to our home to accommodate [X] and our daughter. We have incurred significant legal bills through our previous solicitor.[22]
[22] Maternal grandmother’s affidavit filed 1 July 2011 paragraph 23
The father is on a disability pension and it could be argued that he is paying as much as he can, save that he gave the following evidence:
I pay $12 a fortnight in child support as I am required to do under law. I am a health pensioner. I have bought [X] new clothes, a new x-box Console, Games, motor bike, School shows, toys, books, a portable DVD player and given him money besides.[23]
[23] Father’s affidavit filed 20 July 2011 paragraph 93
The issue of the financial support of [X] has limited relevance given that early in the hearing the father advised that he was no longer seeking an order that the other parties share in travel between [R] and [W].
I must consider any family violence involving the child or a member of the child’s family.
The father has been violent to the mother. I am satisfied that he stabbed her in September 2006 and I accept the mother’s evidence that he assaulted her on Father’s Day 2005.
The father told Ms C that the mother had been violent to him on occasions and that the injuries she suffered on Father’s Day 2005 were the result of him defending himself.
I am somewhat sceptical about these claims, given that the father has a marked tendency to minimise his responsibility for wrongful acts, was not a witness of credit, and was undoubtedly the instigator of the 2006 assault.
Wherever the exact truth lies however if [X]’ time with the father takes place without the mother present it is difficult to conclude that there is a high likelihood that [X] will be exposed to family violence while in the father’s care.
The father’s past family violence has other ramifications. The fact that he minimises his responsibility for it and is prepared to be untruthful about it raises a real question mark about whether he is a good role model for his son.
Another ramification is that [X] has clearly been affected by exposure to the violence in 2006 when his mother was stabbed. He talked about it to his teacher recently and as a result the maternal grandparents arranged for him to see a counsellor. The counselling is proving beneficial for [X].
The fact that [X] remembers and is distressed by his memory of that incident, combined with the fact that the father continues to be in denial about what occurred raises a concern about the confusion [X] could feel and the message which might be sent to him if orders were made for him to spend extensive time with the father. However no party suggested during submissions that the father’s time with [X] should be restricted because of this concern.
There are no family violence orders currently in place.
I must consider whether it is preferable to make the order least likely to lead to further proceedings.
It would not be in [X]’s best interests for any further litigation to occur. This would be costly and stressful for the maternal grandparents and it would do nothing to improve the relationship between the adults, and these things would impact adversely on [X].
The orders least likely to lead to further proceedings are those which give the father the more extensive time he seeks (either immediately or after he complies with drug testing orders) and which provide for supervision to end if he produces evidence that he is not using illicit drugs.
If the orders sought by the mother and maternal grandparents are made further proceedings could occur if and when the father voluntarily undergoes drug testing and obtains evidence that he has ceased using illicit drugs and considers that he has grounds to apply to vary the orders.
Further proceedings do not necessarily have to occur then of course, because the mother and maternal grandparents might be persuaded by the new evidence and agree to vary the orders, but the level of distrust between the parties is such that this might not happen.
However an order that supervision cease (and perhaps time increase) if the father obtains satisfactory drug test results does not guarantee that there will be no further litigation.
The father has a long history of illicit drug use, and I seriously doubt that he is being candid about the extent of his past drug use. People like the maternal grandparents, who have had the experience of their own daughter using hard drugs for fifteen years, are always going to fear that a relapse for someone like the father is just around the corner no matter what drug test results are produced.
If an order is made for supervision to be automatically lifted and time increased upon the production of satisfactory drug test results, the matter could still come back to court if the maternal grandparents see any sign which in their minds indicates a relapse.
I must also consider any other relevant matter.
The father’s counsel referred me to Moose & Moose[24] a case in which Bell J at first instance made an order which required a father’s time with his children to be permanently supervised at a contact centre. The Full Court on appeal held that a flaw in Bell J’s decision was that he had failed to consider the practical long term effects on the children of an indefinite order for supervised contact at a children’s contact centre.
[24] Moose & Moose (2008) FLC 93-375
The father’s counsel submitted that as I had no expert evidence before me about the effects of a long term supervision order I should be extremely cautious about making the order proposed by the maternal grandparents.
I am not persuaded that the absence of expert evidence about the effects of a permanent order for supervision should deter me from making that order.
I am not being asked in this case to order that time be supervised at a children’s contact centre, rather I am being asked to order that time be supervised in the father’s own home by the paternal grandmother.
The father did not put any evidence before the court to suggest that supervision of this nature would impact adversely on him or on the things that he could do with [X].
Such an order will impose no restrictions on the father as to where he can go or what he can do with [X] save for any restrictions arising from the desires or physical capabilities of the supervisor.
The primary supervisor will be the paternal grandmother, someone the father trusts and with whom he gets on well. [X] also has a good relationship with his paternal grandmother who loves him dearly and he and the father may not even ‘feel supervised’ if she is present.
There was no evidence that an order for permanent supervision would have an adverse impact on [X] or on his ability to have a meaningful relationship with his father.
My only concern is that common sense suggests that the paternal grandmother, who as an extended family and a life of her own, might find it difficult to make herself available every alternate weekend indefinitely or to maintain close supervision for a week or more at a time. This favours orders for more limited rather than more extensive time.
Parental Responsibility
It was accepted that the maternal grandparents and the mother would share parental responsibility for [X]. The issue which requires determination is whether the father should also share equally in that parental responsibility.
The father has engaged in family violence and the presumption in s.61DA of the Family Law Act 1975 that he and the mother have equal shared parental responsibility for [X] does not apply. It is still open to the court however to make an order which provides for the father to have equal shared parental responsibility with the other parties if the court considers this to be in [X]’s best interests.
Such an order would require the maternal grandparents, mother and father to consult with each other and attempt to reach agreement if decisions were required about major issues concerning [X]’s long term care, welfare and development.
The debacle over the passport is ample evidence that such an order is unlikely to be in [X]’s best interests.
This incident distressed [X] and distressed the maternal grandparents, who have been the rock in [X]’s life. They were distracted from their task of caring for [X] by worry over the issue and were required to pay extra to get a passport issued for [X] at short notice.
Not only that, but the father attempted to turn the maternal grandparents’ desire for the passport to his advantage to gain extra time with [X] and in this and other ways he has shown an insensitivity to [X]’s emotional needs.
It would not be in [X]’s best interests for anything like this to happen again, and the fact that the father has a very limited capacity to provide for [X]’s emotional needs creates that possibility.
I do not intend to make an order giving the father equal shared parental responsibility for [X] with the other parties.
The Family Report
On 30 November 2010 an order was made pursuant to s.62G of the Family Law Act 1975 for the preparation of a Family Report. Ms C interviewed the parties and [X] in February 2011 and prepared a Report and made the following recommendations:
It is recommended that any time the child spends with the father is supervised by the paternal grandmother or other adult acceptable to the maternal grandparents.
It is recommended that the child spends time with the father at the home of the father at [W] for one weekend per school term, commencing Saturday morning and concluding Saturday afternoon (to be as close as possible to the mid point).
It is recommended that the child spends time with the father at the home of the paternal grandmother in [W] each school holidays for two days including one overnight.
It is recommended that if the father provides sufficient notice to the paternal grandparents he is able to spend two additional periods of four hours with the child during each school term with one period to occur prior to the mid point and one period to occur following the mid point. Such time should occur in the [R] area, supervised by the paternal grandmother.
It is recommended that provision is made for the child to spend time with the father and the paternal family during the Christmas period.
It is recommended that the father be provided with the opportunity to attend significant events at the child’s school.[25]
[25] Family Report paragraph 125-130
Ms C recognised that [X] craved a relationship with his father and her recommendations were tailored to giving him as much time as possible with his father while at the same time endeavouring to protect him from exposure to illicit drug use and family violence.
The father’s counsel made a number of attacks on the report. He first of all sought to have parts of it struck out altogether.
His objections were to the following:
i)The passage in the report in which the father told Ms C that the reason he refused to agree to the issue of a passport for [X] for a holiday in Fiji was legal advice he had received. He submitted that Ms C should have warned the father about his right to legal professional privilege and that because she failed to do so the father’s response should be excised.
ii)The passages in which Ms C concluded that the father was minimising his personal responsibility for his convictions for supply heroin and the wounding of the mother. He submitted that these conclusions were not open to Ms C.
iii)The passages in which Ms C referred to the conclusions which could be drawn from the father’s drug testing results. He submitted that Ms C had no expertise in interpreting drug testing results.
The issue of whether objections should be allowed to parts of a Family Report and the offending passages struck out was considered at length by Wood J in the 1977 case of Hogue & Haines.[26] In that case counsel for the mother objected to parts of a report on the basis that they contained “hearsay and inadmissible expressions of opinion.”
[26] Hogue & Haines (1977) FLC 92-259
Wood J refused to strike anything out and said as follows:
Once a welfare report has been ordered, and provided it be done by a welfare officer who is an officer of the Court pursuant to s.37 of the Family Law Act 1975, and whose qualifications are any of those set out in the five categories under the definition of ‘welfare officer’ in s.4, then the discretion imposed on the court to admit the report into evidence is without limitation. I am of the view that such a report can be admitted even though objected to on the grounds of hearsay or any other basis of admissibility. The question is not one of admissibility of the report, but the weight which is to be given to the material which it contains.
I also refused to strike out any part of the report and admitted the whole Family Report into evidence.
This is consistent with s.62G(8) of the Family Law Act 1975 which provides that:
A report given to the court pursuant to a direction under subsection (2) may be received in evidence in any proceedings under this Act.
The father’s counsel then cross-examined Ms C at length about the matters which he had sought to have excluded from the report.
He put it to Ms C that she should have warned the father that he was entitled to claim legal professional privilege and to refuse to tell her about advice his solicitor had given him.
Ms C pointed out that she engaged in a free flowing conversation with people being interviewed for Family Reports and made no deliberate attempt to elicit from people anything they may have been told by their solicitors, rather she simply recorded the information they gave her.
I reject the suggestion that Ms C had any obligation to warn the father that he did not need to tell her about advice given to him by his solicitor. In Hogue & Haines Wood J referred to this very issue and said as follows:
…..nor is the welfare officer expected to be conversant with the basic rules of evidence in determining what matters to include in the welfare report. Indeed, it would be wrong for a welfare officer to proceed on this basis insofar as it may, on the one hand, inhibit the scope of his inquiry and on the other, by reason of his lack of knowledge of the rules of evidence, result in his not reporting upon matters which he would otherwise have included.
The father’s counsel challenged Ms C about her conclusion that the father minimised his responsibility for the supply heroin offence and for the stabbing incident. He put it to her that this conclusion was not open on the information provided to her by the father and in the subpoenaed documents.
Ms C maintained that it was and I concur. Not only do I consider that these conclusions were open to Ms C on the information available to her I consider that the conclusions are open to me on the evidence available to me.
The father’s counsel cross-examined Ms C about the comments she made about the drug testing results. Ms C said as follows:
On 10 June 2010 Federal Magistrate Terry ordered (by consent) that the father undertake supervised and chain of custody urinalysis service twice each week within 24 hours of the mother’s solicitor providing a letter to the father’s solicitor requesting such urinalysis, however one drug test per fortnight shall be a blood test.[27]
On 18 October 2010 in a Child Dispute Conference with the writer the father was asked whether he would undertake hair follicle analysis to provide clarity as to his drug use. He stated that he would have to “seek legal advice” as to whether he would agree. A recommendation was made to the court at that time that “hair follicle analysis is likely to assist given the discrepancies which may be involved due to the father’s dialysis”.[28]
A limitation to this report is that although the father has provided a report from Dr B in relation to the urinalysis he has undertaken, any copies of drug screens undergone by the father have not been provided to the writer. A further limitation is that it is unclear as to whether the father provided his samples in a supervised and/or chain of custody manner. No blood samples (as previously ordered) appear to have been provided.[29]
It would also be helpful to know at what levels the Cannabis was detected, whether the level is consistent with the father having “a couple of drags on a joint”, and whether the level is declining or increasing.[30]
It is also important to note that tampering with the samples cannot be excluded given that on two occasions low creatine concentrations have been found and given that it is unclear whether the father has been supervised when providing the urine.[31]
[27] Family Report paragraph 96
[28] Family Report paragraph 97
[29] Family Report paragraph 98
[30] Family Report paragraph 100
[31] Family Report paragraph 112.
The father’s counsel put it to Ms C that it was not open to her to draw adverse conclusions against the father arising out of the evidence available to her about the drug testing when she had no special expertise in the area of drug use or drug testing.
This is not a valid criticism. It does not require any special expertise to be concerned about a person’s drug testing results when the person concerned has a long history of illicit drug use and there are obvious failures to comply with orders and anomalies in the results provided.
The father’s counsel submitted that Ms C was evasive during cross examination. I entirely reject that submission.
During final submissions the father’s counsel argued that by intervening to secure the father’s consent to the issue of a passport for [X] Ms C took sides as between the parties and that her recommendations were tainted by lack of impartiality and should be given little or no weight.
I do not accept this submission.
Ms C’s decision to intervene suggests that she considered that the father was being unreasonable in refusing his consent (a view I share). However she acted out of a desire to assist [X], not the maternal grandparents or the mother and there is absolutely nothing in the Family Report to suggest that the passport issue affected her recommendations about the amount of time the father should spend with [X] or whether it should be supervised.
Ms C prepared a thorough Report. Her recommendations were soundly based on the information available to her and I concur with her view that the father is minimising his responsibility for his convictions and that there is reason to be concerned about illicit drug use.
Ms C’s recommendations must be given weight but as the Full Court said in Hall & Hall:
(a) There is no magic in a Family Report. A Judge is not bound to accept it and there should never be any suggestion that the counsellor is usurping the role of the court or that the Judge is abdicating his responsibilities. In Wood (1976) FLC ¶90-098 at p. 75,447; Harris and Harris (1977) FLC ¶90-276; (1977) 29 F.L.R. 285.
(b) Family Reports are meant to be, and almost invariably are, valuable and relevant material to assist a Judge in forming his ultimate conclusions. When those views coincide with the judgment of the court, it is not because they have been accepted automatically but because the Judge has found them consistent with the rest of the body of evidence before him.[32]
[32] Hall & Hall (1979) FLC 90-713
Conclusion
The maternal grandparents deserve the highest praise for the commitment they have shown to their grandson.
They have supported his mother, their daughter, through years of hard drug use. They have been required to accept responsibility for caring for their adult daughter and their grandson at an age when they would normally expect to be free of these burdens and to have an opportunity to ease up a bit, do some travelling and enjoy visits from grandchildren.
The maternal grandparents are the mainstay of [X]’s life and his hope for the future. It is very important that they are supported in their role and are not overwhelmed and overburdened and caused any unnecessary financial stress.
The mother during oral evidence showed some glimmer of understanding of the burden her parents had taken on. The father showed none.
The father imposed a huge burden on the maternal grandparents by his actions concerning the issue of a passport for [X]. Rather than focusing on [X]’s best interests he attempted to use the issue as a bargaining chip to gain something he wanted.
The father’s counsel asked the maternal parents repeatedly during cross-examination what the father would have to do to regain their trust.
It is unlikely that there is anything the father can do to regain their trust, given his long history of hard drug use and his violence to their daughter, but he could make their life easier, and thus make [X]’s life easier, by cultivating some empathy for them, trying occasionally to place himself in their shoes and recognising the burden placed upon them when he does such things as pleasing himself about the time he turns up at their home or refusing an entirely reasonable request that [X] be allowed to go on holiday.
If the father was able to cultivate some empathy for the maternal grandparents and modify some of his behaviour then while trust might not be regained the parties might be able to develop a satisfactory working relationship.
I am not optimistic that this will occur however and I must make orders for [X] against the background of the poor relationship and distrust which exists.
The other background against which I must make the orders is that the father, well knowing that a concern about whether he continued to use illicit drugs was a major issue in the proceedings, did not comply with drug testing orders made in June 2010 and although he had more than twelve months to do so placed no evidence before this court which would remove the concern that drug use continues to be a problem for him.
During final submissions the father’s counsel conceded that given that the father had not complied with the drug testing orders it would be appropriate for the court to order that his time with [X] be supervised by the paternal grandmother for 12 months. He did not concede however that the fact that the father had not done the drug testing should have any impact on how much time [X] spent with the father.
In my view it must.
If the father is using illicit drugs then the more time that [X] spends with him the greater the risk that [X] will be exposed to the father in a drug-affected state. It is unacceptable for this to occur even if the paternal grandmother is there to make sure that [X] is always properly cared for.
In the absence of any evidence from the father which confirms his drug-free status, the appropriate orders for his time with [X] are the orders proposed by Ms C, namely that [X] spend time with the father in his home on one weekend each school term and for four hours on two other occasions if he travels to the maternal grandparents’ home for this to occur.
I intend to make these orders not because of an unquestioning acceptance of Ms C’s recommendations but because in my view they set out a regime of limited regular time under supervision which is appropriate given the unresolved concerns about the father’s drug use.
The father’s counsel proposed that the father be given an “out” concerning the supervision and that it end once the father produced evidence of a drug free status. The father’s counsel said that the father would comply with any orders the court chose to make about drug testing including an order for hair follicle testing.
Although this submission at first blush has merit, the difficulty is that given the orders I intend to make for the more restricted time and my reason for making them if the father was able to establish that he had not used illicit drugs for twelve months logic would suggest that his time as well the supervision ought to be reconsidered.
I would be most reluctant however to make orders which resulted in the father’s time automatically increasing in the future given the state of his health and the fact that his circumstances might have changed in twelve months time. If I did make orders automatically extending his time and removing supervision and other things had changed such as the father having moved back to the Central Coast the maternal grandparents might bring the matter back to court.
I accept the submission of the counsel for the maternal grandparents that the appropriate course is to make final orders for restricted time under the supervision of the paternal grandmother.
This may of course lead to further proceedings if the father is able to establish in twelve months time that he has been abstinent from drug use for twelve months but I intend to order that all parties must go to family dispute resolution to discuss changing the orders if the father instigates it after producing twelve months of clear drug screens and that the father must exhaust this avenue before commencing fresh court proceedings.
The reality is that the father might never voluntarily do hair follicle testing or any other form of reliable testing. He failed to do it in the thirteen months between June 2010 and July 2011 despite the critical importance of it to his case at final hearing. This conduct is similar to his lackadaisical conduct concerning his medical treatment and it is quite possible that the orders I make will be in place for many years to come and that no further proceedings will ever be brought.
I am satisfied that if this is the outcome, [X] will still be able to maintain a meaningful relationship with the father and that the long term supervision of that time will not have a detrimental affect on him.
Counsel for the maternal grandparents proposed that an order be made that either the paternal grandmother or some other person suitable to the maternal grandparents supervise the father’s time. It is reasonable to provide for a substitute because the paternal grandmother might get sick or go on holiday or have another commitment and further court proceedings about the issue of a supervisor should be avoided if at all possible.
I am confident that the maternal grandparents have the capacity to act reasonably if asked to agree to an alternative supervisor.
Counsel for the maternal grandparents sought an order that the father be prohibited from personally driving [X] back and forth between [R] and [W]. The rationale for this was that the father himself had confessed that he found the drive one way exhausting and it was concerning that he might do that drive and then immediately drive back to [W] after collecting [X].
The father’s counsel protested that the father had a NSW driver’s licence and that the court should not make any orders which would inhibit his right to use it.
There is no merit in this argument. To protect children I am often required to make orders which restrain people from doing things which absent those orders they would be lawfully entitled to do.
The order is unnecessary however because if the father’s time is to be supervised the supervisor will need to travel with him to [R] to collect and return [X] and I am confident that that person will ensure that the father does not drive a motor vehicle with [X] (and the supervisor) in it on any journey if he is unable to competently do so.
Counsel for the maternal grandparents emphasised that they were not seeking an order that the father be restricted from driving [X] on short trips in the Sydney area when [X] was visiting him.
The maternal grandparents and the mother proposed that an order be made that they engage [X] in therapeutic psychological intervention for as long as the therapist deemed necessary. This is unnecessary. An order is not required to permit this to occur and the maternal grandparents and mother do not need any prompting from the court to ensure that it occurs if [X] requires it.
The maternal grandparents and the mother proposed that an order be made that the father have telephone communication with [X] at any reasonable time. The father proposed an order for telephone communication at fixed times.
None of the counsel touched on this in addresses. There has never been an issue about telephone communication in the past and I intend to make the more general order proposed by the mother and the maternal grandparents.
In his Response the father sought an order that “at no time shall the mother be permitted to drive with the child.” It was submitted that the mother had had a number of accidents culminating in the accident on 16 March 2010 and that [X]’s safety required this order to be made.
The mother has not had a licence since her accident but could in theory obtain one again in the future.
The mother as well as the father has a poor driving history. However an order such as the one sought by the father would have a far reaching effect. There is no evidence that the mother driving [X] to the shops or to school if she regains her licence would be fraught with danger. I do not intend to make this order rather I will leave it to the good judgment of the mother and maternal grandparents to make appropriate decisions on a case by case basis about how [X] should be conveyed.
For all of the above reasons, the orders of the court will be as set out at the beginning of this judgment.
I certify that the preceding two hundred and seventy five (275) paragraphs are a true copy of the reasons for judgment of Terry FM
Date: 1 September 2011
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